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Congressmen are eager to reform a law that might allow evidence gathered through warrantless
surveillance abroad to be used to prosecute Americans for ordinary crimes, a witness
who testified at a House of Representatives hearing told Bloomberg BNA.

Heightened interest in the Foreign Intelligence Surveillance Act comes on the heels
of President Donald Trump’s accusation in a
tweet March 4 that former President Barack Obama wiretapped Trump Tower during the presidential
election. Rep. Ted Lieu (D-Calif.), who spoke at the
hearing,
tweeted, “Mr. President:
If there was a wiretap at Trump Tower, that means a fed judge found probable cause
of crime which means you are in deep shit.”

Congress is considering whether to renew or reform FISA
Section 702, which authorizes warrantless surveillance of non-U.S. persons outside of the U.S.
for foreign intelligence purposes, before it expires at the end of this year.

Both Republican and Democratic representatives at the March 1 hearing seemed troubled
by claims that the federal government conducts “back door searches” of Section 702
databases to find Americans’ data for use in criminal proceedings unrelated to foreign
intelligence. The Ninth Circuit recently declined an opportunity to evaluate the constitutionality
of such searches, but has been asked to reconsider that decision.

“I think that the House is motivated to undertake significant reform efforts,”
Elizabeth Goitein, co-director of the Liberty & National Security Program at New York University School
of Law’s Brennan Center for Justice, Washington, told Bloomberg BNA by telephone March
6.

But in “the Senate, I think there is still a sense in some quarters that the intelligence
community should be given” the authority it requests “without a whole lot of probing
questions,” Goitein, who
testified at the hearing, said. Further, the Trump administration
reportedly wants to reauthorize Section 702 without reforms.

Section 702 “has been a critically important authority for the intelligence community
in producing intelligence reporting, especially on counterterrorism,”
April F. Doss, a partner at Saul Ewing LLP, Baltimore, and former associate general counsel at
the National Security Agency, told Bloomberg BNA by telephone March 3. Doss
testified at the hearing in support of Section 702.

Ninth Circuit Potential?

The Ninth Circuit is being asked to rehear a case in which it declined to consider
whether backdoor searches violate the Fourth Amendment, in
United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) (85 U.S.L.W. 746, 12/8/16).

In
Mohamud, the Ninth Circuit found that the use of email surveillance collected under Section
702 to convict Mohamed Osman Mohamud for a bomb plot didn’t violate the Fourth Amendment.

“Through the monitoring of a foreign national’s email account,” the federal “government
learned that Mohamud was in contact with that foreign national, who was located overseas,”
the court said.

That “contact—a limited number of emails between Mohamud and the foreign national—was
used to obtain a FISA warrant to surveil Mohamud and his activities,”
the court said.

The court said that the Federal Bureau of Investigation’s acquisition of Mohamud’s
emails “did not involve the retention and querying of incidentally collected communications,”
and that it therefore didn’t need to consider whether backdoor searches were constitutional.

But the “public record provides multiple reasons to believe the government conducted
such a search,”
amici including the American Civil Liberties Union and Electronic Frontier Foundation
said in an
amicus brief in support of rehearing.

By declining to consider the issue of backdoor searches, the Ninth Circuit “disregarded
one of the most intrusive ways in which the government exploits its warrantless collection
of Americans’ communications,” the amici said.

Fourth Amendment, Bipartisan Concerns

Warrantless surveillance under Section 702 is targeted at foreigners but collects
millions of communications that inevitably include large amounts of Americans’ emails,
Goitein testified at the hearing.

Representatives from both parties said they were concerned that the use of such data
in ordinary law enforcement cases may violate Fourth Amendment protections against
unreasonable searches and seizures.

There “really was a strong sense in that room that the FISA foreign intelligence surveillance
regime should not be bootstrapped into serving as a domestic law enforcement tool,”
Goitein told Bloomberg BNA.

Under “Section 702, if you’re an American citizen and you’re caught up in this surveillance,
that information can be passed to the FBI to then do a criminal proceeding and do
a criminal case against you,” Lieu said.

“To me that’s just a flat out violation of the Fourth Amendment,” Lieu said.

Similarly, Rep. Ted Poe (R-Texas) said that the retention and subsequent use of Section
702 data against Americans without a warrant would constitute “a violation of the
Constitution, and an abuse of power by our government on Americans.”

But both that report and a November 2015
opinion by the Foreign Intelligence Surveillance Court “seemed to indicate that it was seldom
if ever that FBI queries of 702 information were leading directly to”
ordinary law enforcement investigations, Doss said.

Goitein said that opinion by Judge Thomas F. Hogan “had some rather suspicious reasoning
in a number of respects.”

Moreover, there was no way to appeal the decision “because the only actual party to
the litigation was the government,”
Goitein said.

In FISC proceedings, the government is the only party that appears in court.

“There was an attorney who was appointed as an amicus, as a friend of the court to
essentially argue the other side,” but that person isn’t “actually a party to the
proceedings and doesn’t have any right to appeal,”
she said.

The “amicus provision was created by the USA Freedom Act of 2015, and it was a great
improvement over the then-status quo” allowing only the government to argue before
the FISA court, Goitein said. But that provision is limited because amici have no
right to appeal, she said.

Section 702 Defended

Doss said that “we should always be concerned about the risks of overreach by government,”
but she stressed the importance of Section 702 data.

“A quarter of all NSA counterterrorism reporting is based on 702, either in whole
or in part,” according to the 2014 Oversight Board report, she said. The report said
that number had been going up each year, she said.

“So it’s been incredibly valuable as an intelligence source,” the former NSA attorney
said.

Further, “the law has been really carefully structured,” Doss said.

The statute provides for “really robust oversight from all three branches of government,”
she said.

The “greatest misconception” is that Section 702 is “bulk collection authority,” she
said. “Although 702 has been used to target a large number of individuals, each one
of those individuals is only targeted” on a “particularized, individual basis.”

The second misconception is that it “allows free-for-all collection against foreigners,”
Doss said.

Section 702 “always requires there to be a specific, articulated nexus to foreign
intelligence and to the really, really important and foundational idea that intelligence
services ought not be collecting information just because they can, or targeting people
for no reason,” she said.

Doss said it’s important to consider “not just all of the ways that hypothetically
the statute could be misused, but much more importantly, all the very tangible controls
that have been put in place both by statute and judges of the FISC to ensure that
it won’t be misused.”

Brave New World

Courts are “kind of limping along with some very outdated case law to try to answer”
constitutional questions concerning new technology, Goitein told Bloomberg BNA.

“We are in a brave new world when it comes to surveillance of international communications,”
and there are questions that courts have “never had to address before.”

Those questions include the “extent of Fourth Amendment protections that Americans
can expect in their conversations with people overseas who are targeted without a
warrant,” she said.

“And thus far, as often happens, the law is really lagging behind the technology,
and the courts are sanctioning the warrantless surveillance that’s happening, even
though the fruits of that surveillance are being used against Americans,”
Goitein said.

To contact the reporter on this story: Patrick L. Gregory in Washington at
pgregory@bna.com

To contact the editor responsible for this story:
Jessie Kokrda Kamens at
jkamens@bna.com

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